Transcripts For SFGTV 20140129

Normally a stipulation like this is in closed session, it becomes a Public Document when the commission has adopted it. I see. But because this particular settlement has been held in open session, at the fppc already, and it makes it a unique case, so we are a little bit outside of our normal procedure on that. Right. So it has to have been decided before we could make it public. Yeah, we dont bring stipulations to the commission, unless the respondent has agreed to the procedure to that. Which is. I am sorry. My other question is, now, i guess that i dont understand the areas of jurisdiction between the state fppc and the San Francisco Ethics Commission. So, this case was brought to both of us, and the fppc has already decided and ruled on it and now, we are about to do that. Right. And the fppc is part of the settlement, and has to do the violation of the state law, and our part of the settlement and has to do with the violations of the local law. Okay. Commissioner andrews you had a comment . Well, we are hearing from, commissioner keane. And i guess that i was a little, struck by when mr. St. Croix said that we were going to find ourselves in a unique situation, by discussing this publicly. I was not clear about that and it feels like, it feels like we should have some amount of participation on the front end that does not have us here. And i dont know what that is and i dont know, at what point that happens, but because it was a public hearing, at the fppc, is that right . Yes. It was. , yes. It just feels like we are being backed into the corner of having to have a discussion that is either nice to have new, or late to the game, i dont understand the full process themselves and so would they be having this discussion, in public . Or in private . They are hearing and we said that we will discuss this and typically in closed session. And somehow, they did. What if they discussed it in the closed session they discussed it in public session. I guess what i am struggling with, the moment that they do that, they immediately set some balls in motion for us that then, in some kind of a way have us talking about it tonight, just like this, which makes it feel like i want or not necessarily the staff did not do the good work because i know that they did but it feels like the commission did not get an opportunity to indulge in some kind of a way and i dont know what that is. It feels like there has to be a front end that we would have been able to have the opportunity to discuss it in the closed session. And we completed the negotiations back in december. And just as an accident, of calendaring your january meeting was a few days before ours. And had their meeting been a few days later we might be in a different situation. And that is the piece, that is the procedural or process piece that i am a little tripped up in, which then,. But, they, i mean they are operating under a different set of requirements than we are, and because we have, we all have to follow state law, but we also have additional requirements that the San Francisco Police Charter places on us and they are more restrictive than the fppc has. Commissioner keane. Could i ask madam chair and the City Attorney could explain it. This is before us, right now, for a vote, whether we will vote up or down, the stipulation, and that enjoining with the fppc,; is that correct . . Right, the fppc has approved their portion of the settlement and i think that what is before us now is whether the Commission Wants to approve the violations of local law, that were admitted to the stipulation. I plan on voting for it, what if we all turned it down tonight, what would happen then . I can answer that. Okay. The fppc would likely sever their part out and, renegotiate that part with the respondent and move on without us. And then we would have to renegotiate with the respondent for our own settlement. And then, if the respondent will not come to terms with us, then we end up going to a hearing on the merits, which is a finding of probable cause and a public hearing on the merits. Thank you, that is, that is quite helpful. And so, in regard to our deliberations of this matter, if we were to decide determining whether or not we are going to enter into the stipulation in order to do that we have to get more information for our hearings. And could we go into everything, or would, i think that we can in terms of what you are saying in the letter to us on december 17th, saying that the ball is now in our court to determine whether we are going to go along with it and making the determination, whether we are going to go along with it if we wanted to hear, lets get some of the background of this and lets get some statements from the person who is charged lets get the statements from the officials of the pec and what they think about it and whether they think this is, or this is okay. Or how they look at it as one of their employees. Those are all things that i could see, some of us maybe saying, yeah i would really like to hear that. Could we do that now this evening . No. You would have to do it. No. Why not. Because the substance of the investigation remain confidential and even after a Settlement Agreement is agreed to and published to the public. The details of the investigation are required to be confidential by the San Francisco charter to the maximum extent allowed by the state law. All right, but so aside from the negotiations, suppose that we wanted to hear and we have supreme power, and suppose that we want to hear from the members of the puc and the people who are involved with this action, and could we have subpoenaed them in here for tonight and taken their testimony . Yeah. Yes, we could . Yes. Well, okay. And in that, and in a public hearing on the merits, yes. And i believe that we could also ask them to testify in a closed session, if you wanted to hear from them in that part of the investigation. We could do it in an open session in front of the public. No. We could not. No. No. Not until we get to the point where there is a hearing on the merits and that is all public. I am sorry. I think that what i am going to have to do is having a conversation with you after this meeting explaining this procedure. I understand, i am just having great difficulty trying to figure out we are being told that we are supposed to deliberate about this stipulation, and i am having great difficulties with the whole idea of deliberating if we cant get information relating to how we makeup our minds in that deliberation, and there is something more willing in there, maybe it is just me. It has never happened to us. In the ten years that i have been here, this is only the second time that we have had a joint settlement with the fppc and this is not common occurrence and in this particular case, this has never happened before and it is not something that we anticipated and had a process in place to handle. Okay. Fair enough. Thank you, madam chair. So, as to the merits of the stipulation itself, and discussion of which way we might decide on this, commissioners do we have any comments on that . I have several questions. My first question has to do with the status of the contract. On page 7 of exhibit 1, it describes that in may, 2013, green returned all of the payments. Are they. Was that simply a voluntary returning of the funds has the contract been terminated . What is the status . Yes, there is no contract between the puc and green for all. And so the puc terminated the contract . I believe that green for all did. Green for all terminated the contract. I believe so. And the puc, agreed to that termination . Yes. One thing that struck me in the penalty discussion, was that there was not much discussion of factors a, through, c. In the exhibit 1. And so i am curious as to what investigation we did and what, or how the staff came out on any intent to conceal or deceive and whether it was deliberate, intentional or in ad vert ant. With respect to the severity, it is addressed in the, it is one of the more serious violations of the conduct code and then, the. The suspect of the penalty amount, and i think that, at least to the two accounts and staft took into consideration, the penalty that the respondent would pay the fppc. And so that and also, she had no prior history with the commission, and she had returned all of the money that she had received from the green for all during the time, and when these events occurred. What is the most severe penalty that we leveed for Something Like that . They are not able to find a similar case regarding these types of violations. And then, the commissions history. Okay. And then, what about the next two factors . Was there a presence, or in tent to conceal or mislead . I do not believe that this was any intention to conceal or deceive or mislead. And i know that mr. St. Croix, you mentioned at the outset that there could be questions that would delve into things that would not be public and i want to be cosmic that i dont step into that. Okay but i am curious as to the basis of that determination, what did she say that made it apparent that there was no intent to conceal. Because it is a little bit difficult to understand how someone like her does not understand what she is doing when she is accepting 17,000 from an entity that is engaging in a 200,000 contract with puc. That is a very legitimate question to ask and so it is a combination of, you know, the staff interviews with the respondent and the superiors, and you know, and in making a judgment call based on those and it is also, a determination that there isnt and we dont have any way to believe that there is any credible evidence otherwise. And there is not that we know of, and to find evidence that there was not intent to deceive. And i guess that you are making credibility and determinations based on how she answers the questions and what the evidence is before you, and so i am curious about what she said, or what evidence she presented to you to indicate that this was somehow accidental, or just negligent and not deliberate. The basic presentation that she made was that she was just completely oblivious that it would make a conflict of interest and that one of superiors were aware and no one raised a flag and so there was no case from people that should have known if there was a conflict and since they did not indicate to her, she felt that she was acting appropriately. And what about that statement to the staff was believable . Was that a typical occurrence, that if the Senior Member does not raise an eye brow, is that typically considered evidence that. It is just making a determination without any evidence to contrary. We have to make assumptions based on oral testimony. Okay. By the way, is her testimony under oath to you . No. Mr. Andrews . So also on page seven and this is, we may or may not know this, it says that the respondent was a member of the board of directors of green for all for 2009, to january of 2013. The respondent disclosed income for green for all for worth that she performed. And as the acting executive director from 2012, to 2013, and so she was on the board and 2012, and 2013, did she, and and we have stepped down from the board to become the acting executive director and she also have been a Voting Member on the board of directors and an acting executive director . I dont have the answer to that question. Im assuming that she remained as a member of the board. And i dont, i never asked her the question of whether or not she voted on the board for green for all during that time. Because within that, just within that organizational structure, you could find yourself having a conflict of interest, undue influence on deciding should you take the contract, and is it something that we should do, and is it something that we should not do . And it just, generally, is a practice, and in different by laws, and differently for different nonprofit and corporations and it is just a general, and often they do step down as an acting executive director when there is the opening at the ceo and the eeed level but usually they recuse themselves from voting during that process to avoid any undue influence or conflict of interest. And that may have happened. I would assume for these purposes, that she has the member of the board had the right to vote. And her membership on that board, in and of itself is not a conflict with her position at the puc and it was when, scoping a contract, that would eventually go to that board, that is where the primary conflict came in, by the fact that when the director took Maternity Leave and she stepped in as the acting director for a salary and that complicated and intensified the conflict. One of the indicators that i did leave out back to your question was that she did report that income on her 4700 which say Public Document. And so, she was not trying to hide the fact that she was a paid member of the board of directors during the course of the events. Madam chair . A couple of things that are articulated in here that i have further questions on, so she takes the training, so she is aware of the fact that Something Like this is a pretty obvious conflict of interest, what is the explanation for still not realizing that it was a violation and what was the expiration there so that we could be comfortable that it was not a deliberate attempt to violate it. And i think as it was stated earlier that she did not understand that this scenario was the same as what was described in the training. I dont believe that she understood the rule i do not believe that. Anything further . Those are my questions. Thank you. Are there comments from the audience . Dr. Derek kur a whistle blower and i would like to appreciate commissioner keanes comments and insights, i think that the problem is that the government officials create these Ethics Commission to serve government officials, and also then the public. There is a builtin bias and all of the confidencalty serves that bias, and protects the officials. I was disheartened by the City Attorneys effort to sort of side track the discussion. And this was a central core issue. And directly, derived from the case in question and so it was not off of the agenda. And i do disagree with the commissioner keane in saying that this was an example of the case where the staff do their job. And this is an unusual case where there was a smoking gun and it is a blatant example of a conflict of interest. And most complaints dont have the smoking gun. And they will have the bullet wounds, and the powder burns, and all kinds of other information. To get the smoking gun, you need to do an investigation and this is what the Ethics Commission does not do. They are very superficial investigations and they bend over backwards to give the respondent the benefit of the doubt and they are swayed by the empathy for the public officials. And that is something that the rest of us dont get. But, thank you for all participation and discussing it is very encouraging. And as i said before, this disturbs me very much. And i am the director of Environmental Advocacy and i have a good track record and i am very well known and your commissioners, superficially, are trying to adjudicate something without diving into it. And into this, situation, and we have organizations in San Francisco, and we dont have to go to green for all. And if you go a little deeper, then the new direct for green for all that replaced juliet ellis and his wife, now works for her. How did that happen . So, if you commissioners superficially assume that your staff did a wonderful job, i think you dont know the difference between the reality and the fluff. That is too much fluff. This woman today is arrogant, tomorrow, she is going to have opened up a new section of the South East Commission in the bay view. She is going to be introducing the board of supervisors cohen and doing the introduction. She has been saying openly, that they can do anything about this. And as i told you earlier in my comments, she is looking forward to her pension and her benefits. And this is, is this the type of public official, she by the way is assistant general manager of the sfpuc. And she by the way was a commissioner, is there a precedence before that some of the commissioner to such a position to relief the fpuc and i can go on and on with her job. And now, there are some people who think that if they are visit the white house or they speak to obama, or president obama, sorry, that we know, that it matters, it does not matter. I spoken to the president , and it does not matter. If you are a professional person, you have got to have standards. This woman has no standards. And i think that by looking at me but this woman has no standards and i was approached by a number of journalists who told me that the Ethics Commission would not give them the required documents, thank you very much. Further comments from the public . Commissioners, any further comments from you before we move toward making a decision on this . Mr. Hur . Could i just for purposes of my own understanding, did the staff believe that it was that there was an absence of an intent to deceive here . Yes . Yes. And did the staff believe that this was inad inadvertent, specifically look the at c. Yes. Had the staff determined that it was deliberate . What do you think the range of penalty recommendations would have been . Much higher. I dont know. I cant give you an amount. Okay. Mr. St. Croix, i had asked you this at one time, but if you could refresh my memory, does this commission have the authority to recommend that a person be in a case like this be removed from their position . That is not one of ours. There is nothing spelled out in the statute or in the charter, that gives us the authority over that kind of thing for this level. I am not being an elected official or a board member or a department head. It is beyond the scope of ours. Ultimately, if the commission determines that they want to communicate to superiors that, you know, their deep concern about Something Like this and what, a remedy that they feel is more appropriate, you could probably do Something Like that. As a separate action. But, that would be outside of the scope of the settlement. But, if we were to do Something Like that, you are saying, we could write a letter to the fpuc, or, whatever, the case would be. Recommending that . Or you are just saying or doing something informally. Yeah, i would assume that and i am going to ask josh to confirm this, if we were to take an action like that, we would probably have to reagendaize. I agree with that. I think that it is beyond the scope of what is agendaized tonight, and i think that for tonight, the question is whether or not to approve the settlement, if there was something additional that you want to do beyond that it will have to be. That action could be done. It is not, within, i mean, are you. So basically the action that you are contemplating would be just some sort of communication by the commission to the puc, sort of recommending some kind of an employment decision to be made . Yes. It is not one of the,. It is not one of the penalties that is contemplated by the political reform act which is the state law here or the conduct code. I dont think that there is anything that is preincluding the commission from just simply making that recommendation. I was asking it as a general question, and you know, in terms of all of the work and all of the cases that have been investigated. And i have. That has never come to our attention. You know, is that something that we should recommend or that we have the authority to actually do . Commissioner . Madam chair, i would think that we as a commission would have the inherent right and power to publicize what we do and to write to other agency and to other governmental entities that might have an interest in what we do and tell them what we have found, and tell them what has occurred as a result of our actions. And i think that in that situation, if i were on the receiving end of that, that would be enough. And i dont think that we have to go any further than that. Yeah. And we actually have been faced with a situation like that. And although, not an actual employee. But, a fellow commissioner on another commissioner, where we have recommended that some action be taken but we dont have the power to enforce that in any event. And maybe, i can ask the City Attorney, this question. If we were to find, and i decided if not with this, the agregious conflict of interest by a city official, dont we have the power to determine if there is official misconduct justifying determination . I would have to check the specific language in the code and i am happy to do that and provide you with an answer after this meeting. Okay. Madam chair . So, we were just wondering what the. Is this not the maximum penalty administrative that i see here if you added those up it was 5,000 for count one and 5,000 for the violation and comes to a total of 20,000 was the max . Correct. And you were. When you referenced earlier that you said that it would be much larger than that, and this is the 20,000 that is the max. Right. And it is proposed penalty is not the maximum. No. I understand it. And in addition to the type that the 17,000 has been returned. Okay. Commissioners . Do we have a motion . I am troubled by this case, i must say. And if the settlement were for something that was north of half of the max at least, i think that i would be more comfortable but i mean, that from, im not, im not convinced that there was not deliberate misconduct here, frankly. And so, i, while i think that the staff is very good job of negotiating the settlement and getting, you know, getting a resolution and while i in general favor the resolution, and because i think that it is efficient and clearly here this person is recognizing that there was a problem, and cooperated fully with the staff and deserves a lot of credi